Prescriptive Right of Way

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It is generally known that an easement, such as a right of way, can be acquired simply by exercising the right, unchallenged and uninterrupted, over a long period. For the claim to the right to be successful it must have been exercised without force, without stealth and without permission – nec vi, nec clam, nec precario. The Court of Appeal handed down judgment this week in the case of London Tara Hotel v Kensington Close Hotel. The Tara was built in the early 1970s and, by an agreement in 1973, the owner of the Tara gave the owner of the adjacent Kensington Close permission to use a roadway on its land from year to year for a nominal licence fee of £1 (if demanded). The Kensington Close hotel changed ownership several times from 1980 onwards. No subsequent licence was granted. The Court of Appeal upheld the finding of the trial judge that the exercise of the right from that time onwards was no longer by permission. The Court of Appeal rejected arguments that the right was exercised :

1) by permission -because the Tara wrongly assumed the licence still to be in effect; or

2) secretly – because the Tara had not been told of the change of ownership. The right had been exercised openly and without permission for a period of at least 20 years and a prescriptive right had been acquired.

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